Australian employment lawyer outlines the legal risks of flexible work
As flexible work cements a place in Australia’s working landscape, HR leaders are being warned of growing compliance risks—particularly around working hours, pay entitlements, and employer obligations under award provisions.
“Since the pandemic there’s been a considerable uptake of working from home – it’s become common occurrence in many workplaces and we’re seeing the line blur between what constitutes as an office. That creates a series of complexities for employers because they have a duty to ensure their employees are safe,” said Victoria-Jane Otavski, Partner at BlackBay Lawyers.
But safety isn't the only concern. Visibility into actual hours worked has emerged as a critical compliance issue—especially when those hours are either under or over contractual obligations.
“It’s a big issue when you have to look at tracking hours,” Otavski explained to HRD. “You could be paying someone for working under what they’re contracted – but there’s an issue you could also see people working over their hours.”
Data from the Fair Work Commission (FWC) shows that of the 531 employees surveyed, half say they rarely or never log their hours of work when working remotely and three out of four attended to non-work matters.
Otavski said there are other ways to ensure your workers are working when not in the office – through monitoring log-on and log-off times as well as keystroke loggers.
“There are loopholes round this – you can leave your computer on or have something type for you, so there’s these imperfect measures. A lot of employees would also take umbrage to this because it’s an invasion of privacy.”
A recent ruling from the FWC highlighted the issue of monitoring employee activity when it found a former consultant at a large insurer was found to have been dismissed for a “valid reason of misconduct.”
Findings show several contract violations including not working rostered hours, starting late, and performing zero hours of work on a number of different days following concerns of the employee missing deadlines.
“Sometimes the workload is a bit slow, but I have never not worked,” the employee told their managers, according to the FWC findings.
This ruling, Otavski outlined, demonstrates the need to monitor work as employees could be attending to personal matters inside their contracted hours of work.
Whilst important to ensure workers are working when they’re supposed to, Otavski concluded that it’s not an easy job.
"The challenge is that if employees work irregular hours remotely—say logging in later or working into the evening—it may inadvertently trigger higher entitlements, like penalty rates, especially under certain awards."
Otavski outlined that without clear visibility into work patterns, especially when the workday could stretch from 9am to 9pm, employers risk breaching annualised wage provisions if actual hours exceed what’s being compensated.
“People are given licence, in some places, to work when they want ‘as long as the work gets done.’ This is a positive metric in some areas, but you could end up owing employees more money because of it," she said.
